Escrow Agreement - Red Hat Inc., Cygnus Solutions, Michael Tiemann and First Union National Bank
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of January 7, 2000 ("ESCROW
AGREEMENT"), is by and among RED HAT, INC., a Delaware corporation ("PARENT"),
MIAMI ACQUISITION CORP., a North Carolina corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), CYGNUS SOLUTIONS, a California corporation
("CYGNUS"), MICHAEL TIEMANN (the "SECURITYHOLDER AGENT"), and FIRST UNION
NATIONAL BANK, a national banking association, as Escrow Agent hereunder
("ESCROW AGENT").
BACKGROUND
A. Parent, Merger Sub and Cygnus have entered into an Agreement and
Plan of Reorganization (the "UNDERLYING AGREEMENT"), dated as of November 15,
1999, pursuant to which Merger Sub will merge with and into Cygnus, with Cygnus
surviving the merger and becoming a wholly-owned subsidiary of Parent (the
"MERGER"). The Underlying Agreement provides that Merger Sub will deposit
1,086,893 shares of Parent Common Stock (the "ESCROW SHARES") into an escrow
account to be available to reimburse Parent, its officers, directors, agents or
Affiliates (including Cygnus as the surviving corporation in the Merger) for
certain losses pursuant to Section 8.2(a) of the Underlying Agreement.
B. Escrow Agent has agreed to accept, hold, and disburse the Escrow
Fund (as defined below) in accordance with the terms of this Escrow Agreement.
C. Pursuant to the Underlying Agreement, the stockholders of Cygnus
receiving shares of Parent Common Stock upon the consummation of the Merger (the
"CYGNUS STOCKHOLDERS") have appointed the Securityholder Agent to represent them
for all purposes in connection with the reimbursement provisions of the
Underlying Agreement and this Escrow Agreement. The number of Escrow Shares
deposited on behalf of each Cygnus Stockholder is set forth in SCHEDULE B
attached hereto.
D. In order to establish the escrow of the Escrow Shares and to effect
the reimbursement provisions of the Underlying Agreement, the parties hereto
have entered into this Escrow Agreement.
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
for themselves, their successors and assigns, hereby agree as follows:
<PAGE>
1. DEFINITIONS. Capitalized terms used in this Escrow
Agreement and not otherwise defined shall have the meanings given to them in the
Underlying Agreement. The following terms shall have the following meanings when
used herein:
"BUSINESS DAY" shall mean any day other than a Saturday or
Sunday, a legal holiday or a day on which commercial banks in Charlotte, North
Carolina are closed.
"CLAIM" shall mean a claim for a Loss or Losses by Parent
pursuant to the Underlying Agreement.
"ESCROW PERIOD" shall mean the period commencing on the date
hereof and ending on the date which is the one year anniversary of the Closing
Date (the "EXPIRATION DATE"); PROVIDED, HOWEVER, that such period shall not
terminate with respect to such amount (or some portion thereof) that together
with the aggregate amount remaining in the Escrow Fund is necessary in the
reasonable judgment of Parent, subject to the objection of the Securityholder
Agent and the subsequent arbitration of the matter in the manner provided in
SECTION 4 below, to satisfy any unsatisfied Claims concerning facts and
circumstances existing prior to the termination of such period specified in any
Officer's Certificate delivered to the Escrow Agent on or before 5:00 p.m.,
California Time, on the Expiration Date.
"ESTIMATED CLAIM AMOUNT" shall mean the amount designated by
the Parent to be the amount of any Claim for which an Officer's Certificate has
been delivered. Escrow Agent shall have no liability or responsibility to
question or determine the accuracy or the reasonableness of any Estimated Claim
Amount.
"OFFICER'S CERTIFICATE" shall mean a written notification,
signed by an officer of the Parent, which shall include (A) a statement that
Parent has paid or properly accrued or reasonably anticipates that it will have
to pay or accrue Losses, (B) a statement specifying in reasonable detail the
amount of the Estimated Claim Amount, the date such amount was paid or properly
accrued, or the basis for such anticipated liability, and the nature of the
misrepresentation, breach of warranty or covenant to which such amount is
related, (C) the sequential number of such Claim in relation to all Officer's
Certificates delivered hereunder, (D) the date of such Officer's Certificate,
and (E) the aggregate Estimated Claim Amounts of all Claims as to which
Officer's Certificates have been delivered. Each Officer's Certificate also
shall include a certification by the officer of the Parent that the Claim is
being made pursuant to the Underlying Agreement and this Escrow Agreement.
2. APPOINTMENT OF AND ACCEPTANCE BY ESCROW AGENT. Parent,
Cygnus, Merger Sub and the Securityholder Agent hereby appoint Escrow Agent to
serve as escrow agent hereunder. Escrow Agent hereby accepts such appointment
and, upon receipt of the Escrow Shares in accordance with SECTION 3 below,
agrees to hold and disburse the Escrow Fund (as defined below) in accordance
with this Escrow Agreement.
2
<PAGE>
3. DEPOSIT OF ESCROW SHARES. As soon as practicable after the
Effective Time, the Escrow Shares will be deposited with the Escrow Agent, such
deposit to constitute an escrow fund (the "ESCROW FUND") to be governed by the
terms set forth herein. The Escrow Agent shall hold and safeguard the Escrow
Fund during the Escrow Period, shall treat such fund as a trust fund in
accordance with the terms of this Escrow Agreement and not as property of Parent
and shall hold and disperse the Escrow Fund only in accordance with the terms
hereof.
4. CLAIMS.
(a) CLAIMS UPON ESCROW FUND.
(i) Upon receipt by the Escrow Agent at any
time on or before the expiration of the Escrow Period of an
Officer's Certificate, the Escrow Agent shall, subject to the
provisions of Section 4(b) hereof, deliver to Parent out of
the Escrow Fund, as promptly as practicable, shares of Parent
Common Stock held in the Escrow Fund in an amount equal to the
Estimated Claim Amount.
(ii) For the purposes of determining the
number of shares of Parent Common Stock to be delivered to
Parent out of the Escrow Fund pursuant to Section 4(a)(i)
hereof, the shares of Parent Common Stock shall be valued at
$90.575 per share.
(b) OBJECTIONS TO CLAIMS. At the time of delivery of
any Officer's Certificate to the Escrow Agent, a duplicate copy of such
certificate shall be delivered to the Securityholder Agent and for a period of
thirty (30) days after such delivery, the Escrow Agent shall make no delivery to
Parent of any Escrow Shares pursuant to Section 4(a) hereof unless the Escrow
Agent shall have received written authorization from the Securityholder Agent to
make such delivery. After the expiration of such thirty (30) day period, the
Escrow Agent shall make delivery of shares of Parent Common Stock from the
Escrow Fund in accordance with Section 4(a) hereof, provided that no such
payment or delivery may be made if the Securityholder Agent shall object in a
written statement to the Claim made in the Officer's Certificate, and such
statement shall have been delivered to the Escrow Agent prior to the expiration
of such thirty (30) day period.
(c) RESOLUTION OF CONFLICTS; ARBITRATION.
(i) In case the Securityholder Agent shall
so object in writing to any Claim or Claims made in any
Officer's Certificate, the Securityholder Agent and Parent
shall attempt in good faith to agree upon the rights of the
respective parties with respect to each of such Claims. If the
Securityholder Agent and Parent should so agree, a memorandum
setting forth such agreement shall be prepared and signed by
both parties and shall be furnished to the Escrow Agent. The
Escrow Agent shall be entitled to rely on any such memorandum
and
3
<PAGE>
shall distribute shares of Parent Common Stock from the Escrow
Fund in accordance with the terms thereof.
(ii) If no such agreement can be reached
after good faith negotiation, and in any event not later than
sixty (60) days after receipt of the written objection of the
Securityholder Agent, either Parent or the Securityholder
Agent may demand arbitration of the matter unless the amount
of the damage or loss is at issue in pending litigation with a
third party, in which event arbitration shall not be commenced
until such amount is ascertained or both parties agree to
arbitration; and in either such event the matter shall be
settled by arbitration conducted by three arbitrators, which
arbitration shall be the exclusive forum for resolution of
Claims as provided herein. Parent and the Securityholder Agent
shall each select one arbitrator, and the two arbitrators so
selected shall select a third arbitrator, each of which
arbitrators shall be independent and have at least ten years
relevant experience. The arbitrators shall set a limited time
period and establish procedures designed to reduce the cost
and time for discovery while allowing the parties an
opportunity, adequate in the sole judgment of the arbitrators,
to discover relevant information from the opposing parties
about the subject matter of the dispute. The arbitrators shall
rule upon motions to compel or limit discovery and shall have
the authority to impose sanctions, including attorneys fees
and costs, to the same extent as a court of competent law or
equity, should the arbitrators determine that discovery was
sought without substantial justification or that discovery was
refused or objected to without substantial justification. The
decision of a majority of the three arbitrators as to the
validity and amount of any Claim in such Officer's Certificate
shall be binding and conclusive upon the parties to this
Escrow Agreement, and notwithstanding anything in Section 4(b)
hereof, the Escrow Agent shall be entitled to act in
accordance with such decision and make or withhold payments
out of the Escrow Fund in accordance therewith. Such decision
shall be written and shall be supported by written findings of
fact and conclusions which shall set forth the award,
judgment, decree or order awarded by the arbitrators.
(iii) Judgment upon any award rendered by
the arbitrators may be entered in any court having
jurisdiction. Any such arbitration shall be held in Santa
Clara County, California under the rules then in effect of the
Judicial Arbitration and Mediation Services, Inc. For purposes
of this Section 4(c), in any arbitration hereunder in which
any Claim or the amount thereof stated in the Officer's
Certificate is at issue, Parent shall be deemed to be the
"Non-Prevailing Party" in the event that the arbitrators award
Parent the sum of one-half (1/2) or less of the disputed
amount plus any amounts not in dispute; otherwise, the Miami
Stockholders as represented by the Securityholder Agent shall
be deemed to be the "Non-Prevailing Party". The Non-Prevailing
Party to an arbitration shall pay its own expenses, the fees
of each arbitrator, the administrative costs of the
arbitration, and the expenses, including without limitation,
reasonable attorneys'
4
<PAGE>
fees and costs, incurred by the other party to the
arbitration, independent of the Escrow Fund.
(d) ACTIONS OF THE SECURITYHOLDER AGENT. A decision,
act, consent or instruction of the Securityholder Agent with respect to
the Escrow Shares, the Escrow Fund or this Escrow Agreement shall constitute a
decision of all the Cygnus Stockholders for whom a portion of the Escrow Shares
otherwise issuable to them are deposited in the Escrow Fund and shall be final,
binding and conclusive upon each of such stockholders, and the Escrow Agent and
Parent may rely upon any such written decision, consent or instruction of the
Securityholder Agent as being the decision, consent or instruction of each every
such stockholder. The Escrow Agent, Parent, Cygnus and Merger Sub are hereby
relieved from any liability to any person for any acts done by them in
accordance with such decision, consent or instruction of the Securityholder
Agent.
(e) THIRD PARTY CLAIMS.
(i) If any third party shall notify Parent
or its Affiliates with respect to any matter (hereinafter
referred to as a "THIRD PARTY CLAIM") which may give rise to a
Claim by Parent against the Escrow Fund, then Parent shall
give notice to the Securityholder Agent within 30 days of
Parent becoming aware of any such Third Party Claim or of
facts upon which any such Third Party Claim will be based
setting forth such material information with respect to the
Third Party Claim as is reasonably available to Parent;
PROVIDED, HOWEVER, that no delay or failure on the part of
Parent in notifying the Securityholder Agent shall relieve the
Securityholder Agent and the Cygnus Stockholders from any
obligation hereunder unless the Securityholder Agent and the
Cygnus Stockholders are thereby materially prejudiced (and
then solely to the extent of such prejudice). The
Securityholder Agent and the Cygnus Stockholders shall not be
liable for any attorneys fees and expenses incurred by Parent
prior to Parent's giving notice to the Securityholder Agent of
a Third Party Claim. The notice from Parent to the
Securityholder Agent shall set forth such material information
with respect to the Third Party Claim as is then reasonably
available to Parent.
(ii) In case any Third Party Claim is
asserted against Parent or its Affiliates, and Parent notifies
the Securityholder Agent thereof pursuant to Section 4(e)(i)
hereinabove, the Securityholder Agent and the Cygnus
Stockholders will be entitled, if the Securityholder Agent so
elects by written notice delivered to Parent within 30 days
after receiving Parent's notice, to assume the defense
thereof, at the expense of the Cygnus Stockholders independent
of the Escrow Fund, with counsel reasonably satisfactory to
Parent so long as:
a) Parent has reasonably determined that
Losses which may be incurred as a result of the Third
Party Claim do not exceed either
5
<PAGE>
individually, or when aggregated with all other Third
Party Claims, the total dollar value of the Escrow
Fund determined in accordance with Section 4(a)(ii)
hereof;
b) the Third Party Claim involves only money
damages and does not seek an injunction or other
equitable relief;
c) settlement of, or an adverse judgment
with respect to, the Third Party Claim is not, in the
good faith judgment of Parent, likely to establish a
precedential custom or practice materially adverse to
the continuing business interests of Parent; and
d) counsel selected by the Securityholder
Agent is reasonably acceptable to Parent.
If the Securityholder Agent and the Cygnus
Stockholders so assume any such defense, the Securityholder
Agent and the Cygnus Stockholders shall conduct the defense of
the Third Party Claim actively and diligently. The
Securityholder Agent and the Cygnus Stockholders shall not
compromise or settle such Third Party Claim or consent to
entry of any judgment in respect thereof without the prior
written consent of Parent and/or its Affiliates, as
applicable. The parties acknowledge that any Third Party Claim
relating to Taxes, Intellectual Property or Company Products
is likely to establish a precedential custom or practice
materially adverse to the continuing business interests of
Parent.
(iii) In the event that the Securityholder
Agent assumes the defense of the Third Party Claim in
accordance with Section 4(e)(ii) above, Parent or its
Affiliates may retain separate counsel and participate in the
defense of the Third Party Claim, but the fees and expenses of
such counsel shall be at the expense of Parent. Parent or its
Affiliates will not consent to the entry of any judgment or
enter into any settlement with respect to the Third Party
Claim without the prior written consent of the Securityholder
Agent. Parent will cooperate in the defense of the Third Party
Claim and will provide full access to documents, assets,
properties, books and records reasonably requested by
Securityholder Agent and material to the claim and will make
available all officers, directors and employees reasonably
requested by Securityholder Agent for investigation,
depositions and trial.
(iv) In the event that the Securityholder
Agent fails or elects not to assume the defense of Parent or
its Affiliates against such Third Party Claim, which
Securityholder Agent had the right to assume under Section
4(e)(ii) above, Parent or its Affiliates shall have the right
to undertake the defense and Parent shall not compromise or
settle such Third Party Claim or consent to entry of any
judgment in respect thereof without the prior written consent
of Securityholder
6
<PAGE>
Agent. In the event that the Securityholder Agent is not
entitled to assume the defense of Parent or its Affiliates
against such Third Party Claim pursuant to Section 4(e)(ii)
above, Parent or its Affiliates shall have the right to
undertake the defense, consent to the entry of any judgment or
enter into any settlement with respect to the Third Party
Claim in any manner it may deem appropriate (and Parent or its
Affiliates need not consult with, or obtain any consent from,
the Securityholder Agent in connection therewith); PROVIDED,
HOWEVER, that except with the written consent of the
Securityholder Agent, no settlement of any such claim or
consent to the entry of any judgment with respect to such
Third Party Claim shall alone be determinative of the validity
of the Claim against the Escrow Fund. In each case, Parent or
its Affiliates shall conduct the defense of the Third Party
Claim actively and diligently, and the Securityholder Agent
and the Cygnus Stockholders will cooperate with Parent or its
Affiliates in the defense of that claim and will provide full
access to documents, assets, properties, books and records
reasonably requested by Parent and material to the claim and
will make available all individuals reasonably requested by
Parent for investigation, depositions and trial.
(f) EXPIRATION OF ESCROW PERIOD. Upon the expiration of the
Escrow Period, Escrow Agent shall not disburse the Escrow Shares unless and
until the Escrow Agent receives a letter from an officer of the Parent
instructing the Escrow Agent to (a) retain a specified number of Escrow Shares
to pay in full all Estimated Claim Amounts, if any, that have not been resolved
at such time and (b) distribute to the Cygnus Stockholders, as promptly as
practicable, in accordance with such letter, the specified number of Escrow
Shares then remaining in the Escrow Fund in proportion to their respective
original contributions to the Escrow Fund (as set forth on SCHEDULE B attached
hereto).
5. DIVIDENDS, VOTING AND RIGHTS OF OWNERSHIP.
(a) DIVIDENDS. Any shares of Parent Common Stock or other
equity securities issued or distributed by Parent (including shares issued upon
a stock split or stock dividend) ("NEW SHARES") in respect of Parent Common
Stock in the Escrow Fund which have not been released from the Escrow Fund shall
be added to the Escrow Fund and become a part thereof. New Shares issued in
respect of shares of Parent Common Stock which have been released from the
Escrow Fund shall not be added to the Escrow Fund but shall be distributed to
the deemed record holders thereof. Cash dividends on Parent Common Stock shall
not be added to the Escrow Fund but shall be distributed to the record holders
thereof.
(b) RECORD HOLDERS. Each Cygnus Stockholder shall be deemed
the record holder of, and shall have voting, dividend, distribution and all
other rights with respect to the shares of Parent Common Stock contributed to
the Escrow Fund by such stockholder (and on any voting securities and other
equity securities added to the Escrow Fund in respect of such shares of Parent
Common Stock) while such shares are held in the Escrow Fund.
7
<PAGE>
6. DISBURSEMENT INTO COURT. If, at any time, there shall exist
any dispute between the Securityholder Agent and the Parent with respect to the
holding or disposition of any portion of the Escrow Fund or any other
obligations of Escrow Agent hereunder, or if at any time Escrow Agent is unable
to determine, to Escrow Agent's sole satisfaction, the proper disposition of any
portion of the Escrow Fund or Escrow Agent's proper actions with respect to its
obligations hereunder, or if the Securityholder Agent and the Parent have not
within 30 days of the furnishing by Escrow Agent of a notice of resignation
pursuant to SECTION 7 hereof, appointed a successor Escrow Agent to act
hereunder, then Escrow Agent may, in its sole discretion, take either or both of
the following actions:
(a) suspend the performance of any of its obligations under
this Escrow Agreement until such dispute or uncertainty shall be
resolved to the sole satisfaction of Escrow Agent or until a successor
Escrow Agent shall have been appointed (as the case may be); and/or
(b) petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in Charlotte,
North Carolina, for instructions with respect to such dispute or
uncertainty, and pay into such court all shares held by it in the
Escrow Fund for holding and disposition in accordance with the
instructions of such court.
Escrow Agent shall have no liability to Securityholder Agent, Parent, Cygnus,
Merger Sub, their respective shareholders or any other person with respect to
any such suspension of performance or disbursement into court, specifically
including any liability or claimed liability that may arise, or be alleged to
have arisen, out of or as a result of any delay in the disbursement of the
Escrow Fund or any delay in or with respect to any other action required or
requested of Escrow Agent.
7. RESIGNATION AND REMOVAL OF ESCROW AGENT. Escrow Agent may
resign from the performance of its duties hereunder at any time by giving thirty
(30) days' prior written notice to the Securityholder Agent and Parent or may be
removed, with or without cause, by the Securityholder Agent and Parent, acting
jointly, at any time by the giving of ten (10) days' prior written notice to
Escrow Agent. Such resignation or removal shall take effect upon the appointment
of a successor Escrow Agent as provided hereinbelow. Upon any such notice of
resignation or removal, the Securityholder Agent and Parent jointly shall
appoint a successor Escrow Agent hereunder, which shall be a commercial bank,
trust company or other financial institution with a combined capital and surplus
in excess of $1,000,000,000. Upon the acceptance in writing of any appointment
as Escrow Agent hereunder by a successor Escrow Agent, such successor Escrow
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Escrow Agent, and the retiring Escrow
Agent shall be discharged from its duties and obligations under this Escrow
Agreement, but shall not be discharged from any liability for actions taken as
Escrow Agent hereunder prior to such succession. After any retiring Escrow
Agent's resignation or removal, the provisions of this Escrow Agreement shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Escrow Agent under this Escrow Agreement.
8
<PAGE>
8. LIABILITY OF ESCROW AGENT.
(a) Escrow Agent shall have no liability or obligation with
respect to the Escrow Fund except for Escrow Agent's willful misconduct or gross
negligence. Escrow Agent's sole responsibility shall be for the safekeeping and
disbursement of the Escrow Fund in accordance with the terms of this Escrow
Agreement. Escrow Agent shall have no implied duties or obligations and shall
not be charged with knowledge or notice of any fact or circumstance not
specifically set forth herein. Escrow Agent may rely upon any instrument, not
only as to its due execution, validity and effectiveness, but also as to the
truth and accuracy of any information contained therein, which Escrow Agent
shall in good faith believe to be genuine, to have been signed or presented by
the person or parties purporting to sign the same and to conform to the
provisions of this Escrow Agreement. In no event shall Escrow Agent be liable
for incidental, indirect, special, consequential or punitive damages. Escrow
Agent shall not be obligated to take any legal action or commence any proceeding
in connection with the Escrow Funds, any account in which the Escrow Fund is
deposited, this Escrow Agreement or the Underlying Agreement, or to appear in,
prosecute or defend any such legal action or proceeding. Escrow Agent may
consult legal counsel selected by it in the event of any dispute or question as
to the construction of any of the provisions hereof or of any other agreement or
of its duties hereunder, and shall incur no liability and shall be fully
indemnified from any liability whatsoever in acting in accordance with the
opinion or instruction of such counsel. Parent shall promptly pay, upon demand,
the reasonable fees and expenses of any such counsel.
(b) The Escrow Agent is authorized, in its sole discretion, to
comply with orders issued or process entered by any court with respect to the
Escrow Fund, without determination by the Escrow Agent of such court's
jurisdiction in the matter. If any portion of the Escrow Fund is at any time
attached, garnished or levied upon under any court order, or in case the
payment, assignment, transfer, conveyance or delivery of any such property shall
be stayed or enjoined by any court order, or in case any order, judgment or
decree shall be made or entered by any court affecting such property or any part
thereof, then and in any such event, the Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ, judgment or
decree which it is advised by legal counsel selected by it is binding upon it
without the need for appeal or other action; and if the Escrow Agent complies
with any such order, writ, judgment or decree, it shall not be liable to any of
the parties hereto or to any other person or entity by reason of such compliance
even though such order, writ, judgment or decree may be subsequently reversed,
modified, annulled, set aside or vacated.
9. INDEMNIFICATION OF ESCROW AGENT. From and at all times
after the date of this Escrow Agreement, Parent shall, to the fullest extent
permitted by law and to the extent provided herein, indemnify and hold harmless
Escrow Agent and each director, officer, employee, attorney, agent and affiliate
of Escrow Agent (collectively, the "INDEMNIFIED PARTIES") against any and all
actions, claims (whether or not valid), losses, damages, liabilities, costs and
expenses of any kind or nature whatsoever (including without limitation
reasonable attorneys' fees, costs and expenses) incurred by or asserted against
any of the Indemnified Parties from and
9
<PAGE>
after the date hereof, whether direct, indirect or consequential, as a result of
or arising from or in any way relating to any claim, demand, suit, action or
proceeding (including any inquiry or investigation) by any person, including
without limitation the Securityholder Agent, any Cygnus Stockholder or Parent,
whether threatened or initiated, asserting a claim for any legal or equitable
remedy against any person under any statute or regulation, including, but not
limited to, any federal or state securities laws, or under any common law or
equitable cause or otherwise, arising from or in connection with the
negotiation, preparation, execution, performance or failure of performance of
this Escrow Agreement or any transactions contemplated herein, whether or not
any such Indemnified Party is a party to any such action, proceeding, suit or
the target of any such inquiry or investigation; PROVIDED, HOWEVER, that no
Indemnified Party shall have the right to be indemnified hereunder for any
liability finally determined by a court of competent jurisdiction, subject to no
further appeal, to have resulted solely from the gross negligence or willful
misconduct of such Indemnified Party. If any such action or claim shall be
brought or asserted against any Indemnified Party, such Indemnified Party shall
promptly notify Parent in writing, and Parent shall assume the defense thereof,
including the employment of counsel and the payment of all expenses. Such
Indemnified Party shall, in its sole discretion, have the right to employ
separate counsel (who may be selected by such Indemnified Party in its sole
discretion) in any such action and to participate in the defense thereof, and
the fees and expenses of such counsel shall be paid by such Indemnified Party,
except that Parent shall be required to pay such fees and expenses if (a) Parent
agrees to pay such fees and expenses, or (b) Parent shall fail to assume the
defense of such action or proceeding or shall fail, in the reasonable discretion
of such Indemnified Party, to employ counsel satisfactory to the Indemnified
Party in any such action or proceeding, (c) the Securityholder Agent, Cygnus any
Cygnus Stockholder or Parent is the plaintiff in any such action or proceeding
or (d) the named parties to any such action or proceeding (including any
impleaded parties) include both Indemnified Party and Parent, any Cygnus
Stockholder and/or Securityholder Agent, and Indemnified Party shall have been
advised by counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to Parent, any such
stockholder or Securityholder Agent. Parent shall be liable to pay fees and
expenses of counsel pursuant to the preceding sentence, except that any
obligation to pay under clause (a) shall apply only to the party so agreeing.
All such fees and expenses payable by Parent pursuant to the foregoing sentence
shall be paid from time to time as incurred, both in advance of and after the
final disposition of such action or claim. All of the foregoing losses, damages,
costs and expenses of the Indemnified Parties shall be payable by Parent upon
demand by such Indemnified Party. The obligations of Parent under this SECTION 9
shall survive any termination of this Escrow Agreement and the resignation or
removal of Escrow Agent.
The parties agree that the payment by Parent of any claim by
Escrow Agent for indemnification hereunder shall not impair, limit, modify, or
affect, as between the Securityholder Agent, the Cygnus Stockholders and Parent,
the respective rights and obligations of the Securityholder Agent and the Cygnus
Stockholders, on the one hand, and Parent, on the other hand, under the
Underlying Agreement.
10
<PAGE>
10. FEES AND EXPENSES OF ESCROW AGENT. Parent shall compensate
Escrow Agent for its services hereunder in accordance with SCHEDULE A attached
hereto and, in addition, shall reimburse Escrow Agent for all of its reasonable
out-of-pocket expenses, including attorneys' fees, travel expenses, telephone
and facsimile transmission costs, postage (including express mail and overnight
delivery charges), copying charges and the like. All of the compensation and
reimbursement obligations set forth in this SECTION 10 shall be payable by
Parent upon demand by Escrow Agent. The obligations of Parent under this SECTION
10 shall survive any termination of this Escrow Agreement and the resignation or
removal of Escrow Agent.
11. REPRESENTATIONS AND WARRANTIES.
(a) Securityholder Agent makes the following
representations and warranties to Escrow Agent:
(i) The execution, delivery, and performance by
Securityholder Agent of this Escrow Agreement is in
accordance with the Underlying Agreement;
(ii) Securityholder Agent has been duly appointed to
act as the representative of the Cygnus Stockholders
hereunder and has full power and authority to
execute, deliver, and perform this Escrow Agreement,
to execute and deliver any required documents, to
amend, modify or waive any provision of this Escrow
Agreement and to take any and all other actions as
required under this Escrow Agreement, all without
further consent or direction from, or notice to, any
Cygnus Stockholder or any other party; and
(iii) All of the representations and warranties of
Securityholder Agent contained herein are true and
complete as of the date hereof and will be true and
complete at the time of any disbursement from the
Escrow Fund.
(b) Parent and Merger Sub make the following
representations and warranties to Escrow Agent:
(i) Parent and Merger Sub are corporations duly
organized, validly existing, and in good standing
under the laws of their respective states of
incorporation and have full power and authority to
execute and deliver this Escrow Agreement and to
perform their obligations hereunder;
(ii) This Escrow Agreement has been duly approved by
all necessary corporate action of Parent and Merger
Sub, including any necessary shareholder approval,
has been executed by duly authorized officers of
11
<PAGE>
Parent and Merger Sub, and constitutes a valid and
binding agreement of Parent and Merger Sub,
enforceable in accordance with its terms;
(iii) The execution, delivery, and performance by
Parent and Merger Sub of this Escrow Agreement is in
accordance with the Underlying Agreement and will not
violate, conflict with, or cause a default under the
articles of incorporation or bylaws of Parent and
Merger Sub, any applicable law or regulation, any
court order or administrative ruling or decree to
which Parent or Merger Sub is a party or any of its
property is subject, or any agreement, contract,
indenture, or other binding arrangement, including
without limitation the Underlying Agreement, to which
Parent or Merger Sub is a party or any of its
property is subject;
(iv) No party other than the parties hereto have, or
shall have, any lien, claim or security interest in
the Escrow Shares or any part thereof. No financing
statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest
in or describing (whether specifically or generally)
the Escrow Shares deposited into the Escrow Fund or
any part thereof; and
(v) All of the representations and warranties of
Parent and Merger Sub contained herein are true and
complete as of the date hereof and will be true and
complete at the time of any disbursement from the
Escrow Fund.
(c) Cygnus makes the following representations and
warranties to Escrow Agent:
(i) Cygnus is a corporation duly organized, validly
existing, and in good standing under the laws of its
state of incorporation and has full power and
authority to execute and deliver this Escrow
Agreement and to perform its obligations hereunder;
(ii) This Escrow Agreement has been duly approved by
all necessary corporate action of Cygnus, including
any necessary shareholder approval, has been executed
by duly authorized officers of Cygnus, and
constitutes a valid and binding agreement of Cygnus,
enforceable in accordance with its terms;
(iii) The execution, delivery, and performance by
Cygnus of this Escrow Agreement is in accordance with
the Underlying Agreement and will not violate,
conflict with, or cause a default under the articles
of incorporation or bylaws of Cygnus, any applicable
law or regulation, any court order or administrative
ruling or decree to which Cygnus is a party or any of
its property is subject, or any agreement, contract,
indenture, or other binding
12
<PAGE>
arrangement, including without limitation the
Underlying Agreement, to which Cygnus is a party or
any of its property is subject;
(iv) No party other than the parties hereto have, or
shall have, any lien, claim or security interest in
the Escrow Shares or any part thereof. No financing
statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest
in or describing (whether specifically or generally)
the Escrow Shares deposited in the Escrow Fund or any
part thereof; and
(v) All of the representations and warranties of
Cygnus contained herein are true and complete as of
the date hereof and will be true and complete at the
time of any disbursement from the Escrow Fund.
12. CONSENT TO JURISDICTION AND VENUE. In the event that any
party hereto commences a lawsuit or other proceeding relating to or arising from
this Escrow Agreement, the parties hereto agree that the United States District
Court for the Western District of North Carolina shall have the sole and
exclusive jurisdiction over any such proceeding. If all such courts lack federal
subject matter jurisdiction, the parties agree that the Superior Court Division
of the General Court of Justice of Mecklenburg County, North Carolina shall have
sole and exclusive jurisdiction. Any of these courts shall be proper venue for
any such lawsuit or judicial proceeding and the parties hereto waive any
objection to such venue. The parties hereto consent to and agree to submit to
the jurisdiction of any of the courts specified herein and agree to accept
service or process to vest personal jurisdiction over them in any of these
courts.
13. NOTICE. All notices and other communications hereunder
shall be in writing and shall be deemed to have been validly served, given or
delivered five (5) days after deposit in the United States mails, by certified
mail with return receipt requested and postage prepaid, when delivered
personally, one (1) day after delivery to any overnight courier, or when
transmitted by facsimile transmission facilities, and addressed to the party to
be notified as follows:
If to Securityholder
Agent at: Michael Tiemann
1362 Montclaire Way
Los Altos, California 94024
Facsimile Number:
13
<PAGE>
If to Parent or
Cygnus at: Red Hat, Inc.
Meridian Parkway
Durham, North Carolina 27713
ATTENTION: David Shumannfang, Esq.
Facsimile Number: (919) 547-0024
with a copy to: Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
ATTENTION: Steven C. Browne, Esq.
Facsimile Number: (617) 248-7100
If to the Escrow
Agent at: First Union National Bank
as Escrow Agent
401 S. Tryon Street
12th Floor
Charlotte, NC 28288
ATTENTION: Mr. James Long
Facsimile Number: (704) 383-7316
or to such other address as each party may designate for itself by like notice.
14. AMENDMENT OR WAIVER. This Escrow Agreement may be changed,
waived, discharged or terminated only by a writing signed by the Securityholder
Agent, Parent and Escrow Agent. No delay or omission by any party in exercising
any right with respect hereto shall operate as a waiver. A waiver on any one
occasion shall not be construed as a bar to, or waiver of, any right or remedy
on any future occasion.
15. SEVERABILITY. To the extent any provision of this Escrow
Agreement is prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Escrow Agreement.
16. GOVERNING LAW. This Escrow Agreement shall be construed
and interpreted in accordance with the internal laws of the State of North
Carolina without giving effect to the conflict of laws principles thereof.
17. ENTIRE AGREEMENT. This Escrow Agreement constitutes the
entire agreement between the parties relating to the holding and disbursement of
the Escrow Fund and sets forth in their entirety the obligations and duties of
Escrow Agent with respect to the Escrow Fund.
14
<PAGE>
18. BINDING EFFECT. All of the terms of this Escrow Agreement,
as amended from time to time, shall be binding upon, inure to the benefit of and
be enforceable by the respective heirs, successors and assigns of Securityholder
Agent, Parent, Merger Sub, Cygnus and Escrow Agent.
19. EXECUTION IN COUNTERPARTS. This Escrow Agreement may be
executed in two or more counterparts, which when so executed shall constitute
one and the same agreement or direction.
20. TERMINATION. Upon the first to occur of the disbursement
of all shares in the Escrow Fund pursuant to SECTION 4 hereof or the
disbursement of all shares in the Escrow Funds into court pursuant to SECTION 5
hereof, this Escrow Agreement shall terminate and Escrow Agent shall have no
further obligation or liability whatsoever with respect to this Escrow Agreement
or the Escrow Fund.
21. DEALINGS. The Escrow Agent and any stockholder, director,
officer or employee of the Escrow Agent may buy, sell, and deal in any of the
securities of the Parent and become pecuniarily interested in any transaction in
which the Parent may be interested, and contract and lend money to the Parent
and otherwise act as fully and freely as though it were not Escrow Agent under
this Agreement. Nothing herein shall preclude the Escrow Agent from acting in
any other capacity for the Parent or for any other entity.
22. MISCELLANEOUS. All references in this Escrow Agreement to
days shall mean calendar days. All actions required to be performed by the
Escrow Agent under this Escrow Agreement on a day which is not a Business Day
shall be performed on the next Business Day.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed as of the date first above written.
PARENT
RED HAT, INC.
/s/ Matthew Szulik
-----------------------------------
By: Matthew Szulik
Title: President and Chief Executive Officer
MERGER SUB
MIAMI ACQUISITION CORP.
/s/ Matthew Szulik
-----------------------------------
By: Matthew Szulik
Title: President
CYGNUS
CYGNUS SOLUTIONS
/s/ Alex Daly
-----------------------------------
By: Alex Daly
Title: President and Chief Executive Officer
SECURITYHOLDER AGENT
/s/ Michael Tiemann
-----------------------------------
Name: Michael Tiemann
FIRST UNION NATIONAL BANK
AS ESCROW AGENT
/s/ Patricia McCool
-----------------------------------
By: Patricia McCool
Title: Assistant Vice President
16
<PAGE>
SCHEDULE A
SCHEDULE OF FEES
ESCROW AGENT OR STANDBY TRUST SERVICES
RED HAT, Inc.
November, 1999
I. ACCEPTANCE FEE $500 PER ESCROW
Initial fee for reviewing documents, communication with counsel and other
parties connected with the financing, setting up accounts and
administration records.
Legal Review Billed at Cost
(Not Applicable with FUNB's standard escrow agreement)
II. ANNUAL ADMINISTRATION FEE $2,000 PER ESCROW
Day-to-day administration of governing documents, maintenance of
investments, communications with obligor and providing statements,
calculation agent for the holders (approximately 153) and other duties
defined in the Escrow Agreement.
III. OUT-OF-POCKET EXPENSES BILLED AT COST
Advance or Out-of-Pocket expenses including but not limited to postage,
legal, telephone, freight, courier and express mail.
IV. INVESTMENT MANAGEMENT OPTIONS
A. Securities Transactions $50 Per Transaction
(Buy/Sell/Collateral Substitution)
B. Automatic Cash Management 35 Basis Points, Annualized
(First Union Evergreen, US Treasury Net of Income
Select Money Market Fund)
V. ACTIVITY CHARGES (IF APPLICABLE)
A. Wire Transfers / Assignment Processing $50 Per Wire
B. Check Disbursements $15 Per Check
C. Distribution of cash dividend and tax reporting $30.00 per
account holder
<PAGE>
SCHEDULE B
Escrow Schedule from Merger Agreement